THE family of a man who drowned when he fell overboard from the deck of a ferry, won the first round of its High Court damages action yesterday.

Father-of-two Michael Davis, 35, died during a Stena Line crossing on the Koningin Beatrix from Rosslare to Fishguard in horrendous weather conditions in October 2000.

His widow, Marian, of Melrose Avenue, Yate, Bristol, claimed that the company was to blame for her husband's death.

Her counsel, Simon Kverndal QC, told Mr Justice Forbes in London that the couple were travelling on a mid-term break with Jim and Katie, now ten and eight.

About five minutes after Mr Davis went overboard, an hour out of Rosslare, he was seen in the sea by a number of passengers and the alarm was raised.

A lifeboat was launched, two rescue helicopters were scrambled and a nearby container ship joined in the search.

About fifty minutes after he had gone overboard, Mr Davis, a well-built man who was a strong swimmer, was spotted "still very much alive" by a crew member on the container ship.

But, six minutes later, he was seen face down in the water.

Stena Line, which denied liability, argued that civil engineer Mr Davis, who had experienced a psychotic episode in 1999, must have gone overboard deliberately.

Today, the judge said that Mr Davis had made a full and rapid recovery from the condition and there was no evidence that he was subject to suicidal tendencies.

There was also no evidence as to how he came to go overboard, as no-one saw it happen.

"All his observed behaviour in the period leading up to and on October 29, strongly suggests that he was enjoying life and that he wanted to live.

"Once in the sea, the evidence clearly shows that Mr Davis did everything he possibly could to survive and that he succeeded in doing so for a remarkably long period of time in extremely difficult conditions."

He also rejected the suggestion that he went over the side as the result of some foolish or reckless action.

Such behaviour would have been entirely out of character.

In his judgment, the probability was that Mr Davis had lost his footing and fallen over the safety rails, or through a gap where an access gate had been left open.

He was satisfied that Mr Davis's death was caused by the negligence of Stena and 55-year-old Captain David Rhys Parry Williams, currently the Master of MV Stena Europe.

The judge said that before Mr Davis was spotted, those on the ferry had no clear and carefully prepared plan of rescue.

Although it was well known from the 1994 Estonia disaster, in which 852 people died, that it was near impossible for high-sided vessels to rescue a man overboard, when its own rescue boats could not be launched because of bad weather, neither the captain nor his crew had received any guidance or training on what to do in such circumstances.

The container ship's fast rescue boat, which could be launched in adverse conditions and which was crewed by skilled ex-fishermen, was obviously the best option for a rescue.

But, Captain Williams did not ask for the boat to be launched and proceeded with his plan to manoeuvre his ferry close to Mr Davis in order to try and retrieve him through the vessel's bunker door.

The judge said that this plan was "ad hoc, ill prepared and not well thought out".

It was "so hopeless and so risky" that Captain Williams should not have proceeded with it unless there was no other option.

Had he chosen the fast rescue boat launch, Mr Davis would have been saved.

Captain Williams's plan was not only doomed to failure but - in the prevailing sea and weather conditions - exposed his own ship to the real risk of catastrophe through waves entering the car deck and destabilising the vessel.

If Stena had properly taken into account the lessons of the Estonia - and of the report into the sinking of the Marchioness pleasure cruiser - it would have provided Captain Williams and his officers with appropriate advice and training.

Its "palpable failure" to do so was "plainly negligent".

The judge also concluded that Captain Williams' manoeuvres as he made his final approach to Mr Davis fell significantly short of what were to be expected of a reasonably competent and prudent Master Mariner.

In his view, its direct consequence was that Mr Davis was faced with a significant change in the sea conditions that he had to cope with and, as a result, he drowned.

"I have no doubt that the sight of the bow plunging heavily right next to him would have been absolutely terrifying and probably led to feelings of panic, thus greatly reducing his ability to cope with the change in conditions."